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SALT LAKE CITY — A judge is considering evidence from a justification hearing held Wednesday to decide whether to dismiss a criminal case against a Taylorsville man accused of firing shots at a car, injuring two women inside, grazing the arm of one and and hitting the other in the back and paralyzing her in July 2020.
The hearing was held to determine whether the use of force was justified under a new Utah self-defense law.
Under the state law that took effect in May, a person charged with a crime of unlawful use of force who claims self-defense can request a justification hearing in front of a judge up to 28 days before a case goes to trial. The law shifts the decision about whether someone acted in self-defense from a jury to a judge, who might have to rule based on limited pretrial evidence.
In the hearing, prosecutors must prove with "clear and convincing evidence" — a high legal bar — that the person did not act in self-defense or was not justified in the use of force. If prosecutors are not able to meet that burden of proof, the judge must dismiss the charges with prejudice, meaning they cannot be refiled.
Faalae So'o, 38, is charged in 3rd District Court with eight counts of felony discharge of a firearm after he allegedly shot at a car that was driving away. One of the counts is a first-degree felony, one a second-degree felony, and the rest are third-degree felonies.
Two of So'o's sisters testified at the hearing, along with multiple police officers who responded to the scene.
The sisters said that they were outside when two cars parked in front of their Kearns apartment complex. They saw four or five people leave the cars and begin to vandalize a neighbor's car. The sisters both said that the individuals who came out of the cars were about 5 or 6 feet away from them because the complex was small, and that their brother told them to go inside. Shots were fired after they went inside.
So'o told police he heard a loud boom and thought it was gunfire. He said he approached the group vandalizing a car and saw a man holding an object, "but he wasn't sure what it was," a police booking affidavit states.
So'o then pulled out his gun and the four to five people got back into their own vehicles and started to drive away, according to the affidavit. But then the cars stopped, drove a little further, and stopped again.
"(So'o) said the brake lights were on when the cars were stopped but he was worried they may back up. (He) said he aimed at the tires/back of the car and fired his gun," according to the affidavit. Two women, both 18, were hit and injured.
Attorney Christine Seaman, who represents So'o, also cited evidence from the preliminary hearing which she said meets the standard for a prima facie case, one that is obvious from the beginning. She said So'o testified that he saw what he thought could be a gun, that a man with a weapon came up to him, and that he feared for the safety of himself and for his sisters.
Judge William Kendall said that in this case it was a close call, but he did rule that the standard had been met to show that force was justified. This means that prosecutors need to prove that the crimes were committed to a higher standard of clear and convincing evidence. The judge said that it stood out that So'o said at the preliminary hearing that the individuals said something about coming back and that he was fearful.
The prosecutor, Melanie Serassio, refuted this and presented evidence from her own witnesses to seek to reach the clear and convincing standard.
"I don't think that just because you see people vandalizing a vehicle and you see someone with a gun that that means you can shoot," she said.
Serassio called multiple police officers to testify based on what they saw at the scene and what witnesses had told them, as well as a neighbor who was sitting outside and provided security camera video showing the cars were moving away when the shots were fired. Serassio pointed out possible conflicts in what the sisters testified in court compared to what they told officers on that night.
The court set another hearing for Feb. 9 to allow the prosecutors to finish presenting evidence and bring at least one additional witness. Serassio said she wanted an extension and the ability to provide additional testimony because if the case is dismissed the charges could not be refiled.